Abhishek (Migration)

This matter concerned an application for a Skilled Nominated (Permanent) visa (Subclass 190) by Abhishek. The applicant had achieved a qualifying score under the points test for the visa. The dispute before the Tribunal was whether the applicant's assessed score met the requirements stipulated in the invitation to apply for the visa and the general qualifying score.

The legal issues before the Tribunal were to determine if the applicant's assessed score was not less than the score stated in the invitation to apply for the visa, and if it was not less than the applicable "qualifying score" as defined by the Migration Act 1958 (Cth) and its associated Regulations. This involved assessing the applicant's points against the criteria in Schedule 6D to the Regulations, considering the most favourable legislative provisions in force at the time of the delegate's assessment and the Tribunal's assessment, and examining elements related to the nominated skilled occupation, which in this instance was Chef (ANZSCO 351311).

The Tribunal reasoned that the applicant was entitled to 25 points for age, as they were 34 at the time of invitation. However, the applicant did not achieve points for English language proficiency, as their PTE Academic score of 62 did not meet the threshold for proficient or superior English. The Tribunal noted that points may be available for overseas employment experience, but the provided text did not detail the applicant's eligibility for these points. Despite this, the Tribunal concluded that the applicant was entitled to a maximum of 60 points. As this score was not less than the score stated in the invitation and not less than the qualifying score, the Tribunal found that the applicant satisfied clause 190.214 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration, with the direction that the applicant meets the criterion specified in clause 190.214 of Schedule 2 to the Regulations.